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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on a negotiability appeal filed by
the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute). The appeal concerns the negotiability of
16 provisions disapproved by the Agency head under section 7114(c) of the
Statute.(1)

For the reasons set forth below, we reach the following
conclusions:

Provision 1, which restricts management's ability to make holiday
work assignments, is contrary to law. Seeinfra Part III.

Provision 2, which requires management to provide each employee
with at least 2 consecutive weeks of annual leave, is contrary to law.
Seeinfra Part III.

Provision 3, which requires management to provide employee blood
donors with up to 4 hours of excused leave, is contrary to law. Seeinfra Part III.

Provision 4, which requires management to select the Union's nominee
for Equal Employment Opportunity Counselor, is contrary to law. Seeinfra Part III.

Provision 5, which requires raters to occupy a specified grade level,
is contrary to law. Seeinfra Part III.

Provision 6, which requires the presence of a Union observer at
rating-panel meetings, is contrary to law. Seeinfra
Part IV.

Provision 7, which prevents the Agency from considering candidates from
outside sources if an installation search reveals a highly qualified
individual, is contrary to law. Seeinfra Part V.

Provision 8, which precludes management from disciplining
employees for refusing to obey orders, is contrary to law. Seeinfra Part VI.

Provision 9, which requires management to assign rating duties only to
employees who satisfy specified criteria, is contrary to law. Seeinfra Part VII.

Provision 10, which permits management to make changes in tours of duty
with less than 7 days' notice only when there is an emergency that would hamper
accomplishment of the Agency's mission, is contrary to law. Seeinfra Part VIII.

Provision 11, which requires management to provide employees who work
more than 4 hours of overtime with a compensated meal break, is contrary
to law. Seeinfra Part IX.

Provision 12, which requires management to negotiate with the Union
over competitive areas, is not contrary to law. Seeinfra
Part X.

Provision 13, which requires management to provide training to
interviewers, is not contrary to law. Seeinfra Part XI.

Accordingly, we dismiss the Union's petition as to Provisions 1
through 11 and direct the Agency head to rescind its disapproval of
Provisions 12 and 13.

II. Preliminary Arguments

A. Positions of the Parties

1. Union

The Union presents two preliminary arguments. First, the Union contends
that the Agency head's disapproval of the agreement was prohibited by
section 2424.3 of the Authority's Regulations. According to the Union,
section 2424.3 authorizes agency heads to disapprove only matters
"proposed to be bargained" and not matters "that have been negotiated to
closure" by the Union and the Agency's local representatives. Petition
at 1.

[I]n [Montana Act], the D.C. Circuit found that the permissive
subjects of bargaining delineated in 5 USC 7106(b) constituted an
exception to 5 USC 7106(a)'s prohibition on bargaining over statutory
managerial prerogatives in cases when, as here, the Agency had voluntarily
undertaken to negotiate on these issues. The court ruled that after the local
Activity reached an agreement with the Union, the agency head could not
lawfully disapprove the agreement on the basis that it ran contrary to
5 USC 7106(a)(1).

Petition at 1.

2. Agency

With respect to the Union's first contention, the Agency argues
that "it is well established that the disapproval of an agreement under agency
head review constitutes an allegation of nonnegotiability under 5 CFR
2424.3." Statement of Position at 1-2.

As for the Union's second contention, the Agency argues that the
Union's "very generic reference" to Montana ACT does not provide a
basis for determining whether that case operates to shield any portion of the
agreement from agency-head disapproval. Statement of Position at 2.

B. Analysis and Conclusions

1. The Agency Head's Disapproval of the Agreement Was Not Prohibited
by Section 2424.3 of the Authority's Regulations

Section 2424.3 of the Authority's Regulations provides: "The time
limit for filing a petition for review is fifteen (15) days after the date the
agency's allegation that the duty to bargain in good faith does not extend to
the matter proposed to be bargained is served on the exclusive representative."
In interpreting section 2424.3, the Authority has held that an agency
head's disapproval of a negotiated agreement constitutes an allegation of
nonnegotiability as to the disapproved provisions. E.g., Tidewater
Virginia Federal Employees, Metal Trades Council and U.S. Department of the
Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 42 FLRA 845, 848
(1991). That interpretation has been affirmed on judicial review. SeeMontana ACT, 22 F.3d at 1154; American Federation of
Government Employees, AFL-CIO v. FLRA, 778 F.2d 850, 853 (D.C. Cir.
1985).

The Union correctly points out that section 2424.3 could be
interpreted to mean that an agency may make an allegation of nonnegotiability
only as to matters "proposed to be bargained" and not as to matters "that have
been negotiated to closure[.]" Petition at 1. As outlined above, however,
that interpretation would be inconsistent with both Authority and appeals-court
precedent. Consequently,we conclude that the Agency head's
disapproval of the agreement was not prohibited by section 2424.3 of the
Authority's Regulations.

2. The Agency Head's Disapproval of the Agreement Was Not Prohibited
by the Court's Decision in Montana ACT

In Montana ACT, the court held that once local agency
negotiators and a union reach agreement on a subject covered by
section 7106(b)(1) of the Statute, the agency head cannot disapprove the
agreement on the ground that the subject also is covered
by section 7106(a) of the Statute. Montana ACT,
22 F.3d at 1155-56. Subsequently, the Authority developed a framework
for applying the Montana ACT holding to provisions alleged by the
union to be negotiable under section 7106(b)(1) and by the agency to be
contrary to law under section 7106(a). SeeNational Association of
Government Employees, Local R5-184 and U.S. Department of Veterans
Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386, 393-94
(1995) (VAMC, Lexington) (applied to provisions imposing one requirement
on management). See alsoAmerican Federation of Government Employees,
Local 1336 and Social Security Administration, Mid-America Program Service
Center, 52 FLRA 794, 800-01 (1996) (SSA, Mid-America) (applied
to provisions imposing two or more inseparable requirements on management),
petition for review withdrawn, No. 97-1066 (D.C. Cir. May 30,
1997).

Here, the Union does not identify the specific provisions believed to
be unlawfully disapproved under Montana ACT. In addition, the Union
makes no argument as to how the particular subject matter of any of the
provisions falls within the ambit of section 7106(b)(1). The bare assertion
that the Agency head's disapproval of the agreement was contrary to Montana
ACT simply does not provide us with a sufficient basis for applying
VAMC, Lexington and SSA, Mid-America to the disputed provisions.
Accordingly, we review the disputed provisions only on the grounds asserted by
the Agency. SeeNational Association of Government Employees,
Local R3-10 and U.S. Department of Transportation, Federal Aviation
Administration, Washington, D.C., 53 FLRA 139, 141-42 (1997) (holding
that a party advancing a particular legal theory has the burden of creating a
record on which that theory can be applied), petition for review filed,
No. 97-1522 (D.C. Cir. Aug. 25, 1997).

Article 12, Section 2. Holidays shall be observed
as non-workdays and no work except that which is necessary will be required of
employees on such days.

Provision 2

Article 14, Section 3. All employees shall be afforded
the opportunity to take a minimum of two (2) consecutive weeks annual
leave each year.

Provision 3

Article 15, Section 6. Employees shall be excused
up to four (4) hours for each occasion to donate blood, for recuperation
following blood donations, and for travel time.

Provision 4

Article 16, Section 6.The Union shall nominate
a minimum of one employee to serve as an Equal Employment Opportunity Counselor
for an unlimited term. The Employer agrees to provide initial training to
each designated Union counselor. Official time will be granted for all
subsequent training.

Provision 5

Article 45, Section 6j-c(2)(a). The rater(s) will
occupy a position at a level no lower than that of the position being filled
and will be capable of making sound decisions regarding criteria and
qualifications in the occupational field.

A. Positions of the Parties

1. Agency

The Agency contends that Provisions 1 through 5 are contrary to law
because they affect management's right to assign work under section
7106(a)(2)(B) of the Statute. According to the Agency, Authority precedent
supports its contention with respect to each provision.

2. Union

The Union responds that the provisions must stand because the Agency
already has agreed to them. The Union also asserts that the provisions are not
contrary to law, rule, or regulation. The Union does not argue that Provisions
1 through 5, or any of the other provisions alleged to affect management's
rights, fall within the coverage of section 7106(b)(2) or (3) of the Statute.
In addition, the Union does not challenge any of the precedent cited by the
Agency.

B. Analysis and Conclusions

1. Provision 1

Management's right to assign work under section 7106(a)(2)(B) of the
Statute includes the right to make holiday work assignments without
restriction. E.g., International Association of Machinists and
Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island,
San Diego, CA, 31 FLRA 158, 168-69 (1988). Provision 1, by its
plain terms, would permit such assignments only when "necessary." It is clear,
therefore, that the provision affects management's right to assign work under
the Statute. Seeid.

Contrary to the Union's assertion, the fact that Provision 1 was
agreed to by the Agency's local negotiators is not dispositive of the
provision's lawfulness. A provision that affects a management right under
section 7106(a) of the Statute will be determined to be unlawful unless it
either: (1) falls within the coverage of section 7106(b) of the
Statute, seeMontana ACT, 22 F.3d at 1154-55, or
(2) is in accordance with an applicable law outside the Statute,
seeDepartment of the Treasury, Internal Revenue Service v. FLRA,
494 U.S. 922, 930 (1990). As discussed above, the Union makes only a bare
assertion that the provisions at issue fall within section 7106(b)(1) and
does not argue that any of them constitute a procedure under
section 7106(b)(2) or an appropriate arrangement under
section 7106(b)(3). In addition, it is neither argued nor apparent that
any of the provisions are in accordance with applicable outside law.

Based on the foregoing, we conclude that Provision 1 is contrary
to law as alleged. Accordingly, we dismiss the Union's petition as to
Provision 1.

2. Provision 2

As the Agency points out, management's right to assign work under
section 7106(a)(2)(B) includes the right to determine the amount of annual
leave that may be used at any given time. SeeNational Treasury
Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco
and Firearms, 45 FLRA 339, 375-80 (1992) (holding that
Provision 15, which required management to grant 2 consecutive
weeks of annual leave, was both contrary to law and not an appropriate
arrangement), union petition for review withdrawn, No. 92-1370
(D.C. Cir. Aug. 5, 1993), andagency petition for review
withdrawn, No. 92-1380 (D.C. Cir. Apr. 22, 1993). Provision 2 would
require the Agency to provide all employees with at
least 2 consecutive weeks of annual leave. By its plain terms, the
provision would preclude management from granting annual leave for periods of
less than 2 consecutive weeks, regardless of staffing needs. The
provision, therefore, affects management's right to assign work and is contrary
to law as alleged. Seeid. at 378. Accordingly, we
dismiss the Union's petition as to Provision 2.

3. Provision 3

The Authority has held that management's right to assign work includes
determining whether to excuse employees from work assignments so that they may
donate blood. E.g., National Federation of Federal Employees,
Local 1655 and U.S. Department of Defense, National Guard Bureau,
Alexandria, Virginia, 49 FLRA 874, 880 (1994). Provision 3 would
require the Agency to grant excused absences to employee blood donors without
regard to the effect of the absences on management's work assignments. The
provision, therefore, affects management's right to assign work and is contrary
to law as alleged. Seeid.; cf.National Federation of
Federal Employees, Local 1429 and U.S. Department of the Army, Letterkenny
Army Depot, 23 FLRA 117, 119 (1986) (holding that provision was not
contrary to law because it "would not restrict the Agency's right to deny an
employee's request when the Agency needed the employee to perform work[]").
Accordingly, we dismiss the Union's petition as to Provision 3.

4. Provision 4

It is well-settled that a provision authorizing a union to select an
agency EEO counselor is contrary to section 7106(a)(2)(B) of the Statute
because it affects management's right to assign work. SeeAmerican
Federation of Government Employees, AFL-CIO, Local 1692 and Department of
the Air Force, Mather Air Force Base, California, 8 FLRA 194, 194-95
(1982) (Mather AFB) (reviewing provision requiring agency to
appoint one EEO counselor nominated by union); American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 2 FLRA 604, 622-23 (1980) (Wright-Patterson
AFB) (reviewing proposal requiring agency to select half of its EEO
counselors from a list provided by union), enforced as to other matters sub
nom.Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir.
1981); cf.International Plate Printers, Die Stampers and Engravers
Union of North America, AFL-CIO, Local 2 and Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113,
137-38 (1987) (holding that provision authorizing use of an EEO
committee was a negotiable procedure under section 7106(b)(2) of the
Statute). It is undisputed that Provision 4 would require the Agency to
appoint the Union's nominee for EEO counselor to an unlimited term. Statement
of Position at 10. The provision, therefore, affects management's right to
assign work and is contrary to law as alleged. SeeMather AFB,
8 FLRA at 195; Wright-Patterson, 2 FLRA at 623.
Accordingly, we dismiss the Union's petition as to
Provision 4.

5. Provision 5

A provision specifying the qualifications of employees assigned to
rating panels affects management's right to assign work.
SeeNTEU, 53 FLRA No. 59, slip op. at 30
(Article 12, Section 4(G)). Provision 5 would prevent the Agency
from selecting employees as rating-panel members unless they "occupy a position
at a level no lower than that of the position being filled[.]" The provision,
therefore, affects management's right to assign work and is contrary to law as
alleged. Seeid. Although a provision specifying the
qualifications of rating-panel members may, under certain circumstances,
constitute a negotiable appropriate arrangement under section 7106(b)(3)
of the Statute, seeid. at 31-35, the Union makes no
argument to this effect. Accordingly, we dismiss the Union's petition as to
Provision 5.

IV. Provision 6

Article 45, Section 6j-c(2)(d).The Union will be given
timely advance notice of rating panels and will be provided the opportunity to
have an observer present. The observer may, as the need arises during the
panel operation, consult with the assigned specialist/personnel representative
regarding the rating process and may, in consultation with the staffing
specialist, review record of candidate(s) that are
questionable.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 6 affects management's right to
make selections for appointments under section 7106(a)(2)(C) of the Statute.
The Agency also contends that the provision affects management's right to
assign work under section 7106(a)(2)(B).

2. Union

The Union's position, in its entirety, is that "[t]his provision has
. . . been in place in the Ft. Rucker Merit Placement Plan for many
years. It [is] simply a rollover of a provision contained in the current
contract." Petition at 4.

B. Analysis and Conclusion

Provisions requiring the presence of union observers on rating panels
affect management's right to make selections for appointments by impairing
management's ability to engage freely in internal discussions and deliberations
prior to making decisions. SeeAmerican Federation of Government
Employees, Local 3434 and National Aeronautics and Space Administration,
Marshall Space Flight Center, Alabama, 49 FLRA 382, 387 (1994)
(AFGE, Local 3434), overruled as to other matters,
NTEU, 53 FLRA No. 59, slip op. at 33; cf.National
Treasury Employees Union and U.S. Department of the Treasury, Customs Service,
Washington, D.C., 46 FLRA 696, 778-80 (1992) (holding that proposal
requiring the use of a rating panel was within the duty to bargain),
petition for review withdrawn, No. 93-1076 (D.C. Cir. Apr. 27,
1993). Provision 6 would require management to provide the Union with "the
opportunity to have an observer present" at rating-panel meetings. The
provision, therefore, affects management's right to make selections for
appointments and is contrary to law as alleged. SeeAFGE,
Local 3434, 49 FLRA at 388. Although a provision requiring
union participation on a rating panel may, under certain circumstances,
constitute an appropriate arrangement under section 7106(b)(3) of the Statute,
cf.NTEU, 53 FLRA No. 59, slip op. at 31-35, the Union makes
no argument to this effect. Accordingly, we dismiss the Union's petition as to
Provision 6.(3)

V. Provision 7

Article 45, Section 5b(4). Should no highly qualified
individual be located in an initial installation search, in the interest of
furthering affirmative action and to correct identified out-of-balance
situations in the installation work force, the normal minimum area of
consideration will be expanded for the purpose of locating highly qualified
minority and female candidates from "outside" labor market sources and
concurrent consideration will be directed to those sources.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 7 affects management's right
"to select for appointments from any source under 5 USC 7106(a)(2)(C)."
Statement of Position at 13. In particular, the Agency argues that the
provision unlawfully "restricts management to selecting from the existing
installation workforce unless there is a lack of highly qualified candidates in
the existing work force." Id.

2. Union

In the Union's view, Provision 7 "correctly represents the
intention of the parties to restrict the selection of candidates from outside
the installation unless one of two specific situations exist: a lack of highly
qualified candidates in the existing installation workforce or a workforce
imbalance warranting affirmative action." Petition at 3. The Union adds
that the provision "does not v[io]late any law, rule, or regulation" and,
therefore, "is negotiable and should stand as written." Id.

B. Analysis and Conclusion

Under section 7106(a)(2)(C) of the Statute, agencies have discretion to
fill positions by selecting candidates from any appropriate source without
restriction. SeeAmerican Federation of Government Employees,
National Border Patrol Council and U.S. Department of Justice, Immigration and
Naturalization Service, 51 FLRA 1308, 1320 (1996). As the parties
point out, Provision 7 would preclude management from exercising its
discretion to consider candidates from outside the installation if an "initial
installation search" turns up a "highly qualified individual[.]" The provision,
therefore, affects management's right to make selections from any appropriate
source and is contrary to law as alleged. SeeTidewater Virginia
Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard,
31 FLRA 131, 135-36 (1988) (reviewing proposal to limit the area of
consideration to the bargaining unit unless the unit "fail[ed] to produce one
highly qualified candidate"). Accordingly, we dismiss the Union's petition as
to Provision 7.

VI. Provision 8

Article 19, Section 7.An employee will not be subject to
discipline for refusing to obey an unlawful order or an order that would
endanger the employee's personal safety or the safety of
others.

A. Positions of the Parties

1. Agency

The Agency contends that the disputed portion of Provision 8
"interferes with management's right to discipline under 5 USC
7106(a)(2)(A)" because it "would preclude management from disciplining an
employee if he or she refused an order to perform an assignment 'that would
endanger the employee's safety or the safety of others.'" Statement of Position
at 11. In support of its position, the Agency cites American Federation
of Government Employees, Local 1345 and U.S. Department of the Army,
Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson,
Colorado, 48 FLRA 168, 199-203 (1993) (AFGE,
Local 1345).

2. Union

According to the Union, "The language of this provision accurately
reflects the intention of the parties and does not v[io]late any law, rule, or
regulation. The mere fact that the parties have negotiated to agreement on this
issue makes it negotiable." Petition at 3.

B. Analysis and Conclusion

Provisions that prevent management from disciplining employees for
specified conduct are contrary to section 7106(a)(2)(A) of the Statute.
SeeAFGE, Local 1345, 48 FLRA at 202 (holding that
proposal prohibiting discipline for a "refus[al] to obey . . . an
order which would require the employee to place himself/herself in danger of
death or serious bodily harm" was outside the duty to bargain and not an
appropriate arrangement). Provision 8 would prevent management from
disciplining employees for specified conduct, namely, for refusing to obey "an
order that would endanger the employee's personal safety or the safety of
others." The provision, therefore, affects management's right to discipline and
is contrary to law as alleged. Seeid. Accordingly, we dismiss
the Union's petition as to Provision 8.

VII. Provision 9

Article 45, Section 6j-d. The rating of
applications shall be performed only by persons in the job series 0203
or 0212, or by properly designated rating panels of occupational experts
and shall be reviewed by persons holding the grade of GS-09 or above in job
series 0212.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 9 affects management's right to
assign work and, therefore, is contrary to section 7106(a)(2)(B) of the
Statute. The Agency also argues that Provision 9 is contrary to section
7112(b)(3) of the Statute.

2. Union

According to the Union, "This provision reflects the way the Employer
and the Union have been and continue to conduct business on a daily basis."
Petition at 4. The Union also argues that "[t]his provision does not
v[io]late any law, rule, or regulation" and, therefore, "is negotiable and
should stand as written." Id.

B. Analysis and Conclusion

Management's right to assign work under section 7106(a)(2)(B) of the
Statute includes the authority to determine the particular employees to whom,
and the particular positions to which, work will be assigned.
SeePatent Office Professional Association and U.S. Department
of Commerce, Patent and Trademark Office, 41 FLRA 795, 818 (1991).
Provision 9 would preclude management from assigning the rating of
applications to any employee who is not a designated occupational expert or
whose job series is not 0203 or 0212. In addition, the provision would preclude
management from assigning related duties to any employee who does not occupy a
grade level of GS-9 or higher in job series 0212. Because Provision 9
would restrict the employees and positions to which work can be assigned, it
affects management's right to assign work and is contrary to law as
alleged.(4)Seeid. As noted in
the analysis of Provision 5, a provision establishing the qualifications
of those assigned to be raters may, under certain circumstances, constitute a
negotiable appropriate arrangement under section 7106(b)(3) of the
Statute. SeeNTEU, 53 FLRA No. 59, slip op. at 31-35.
However, because the Union did not raise that question, we do not address it
here. For the foregoing reasons, we dismiss the Union's petition as to
Provision 9.

VIII. Provision 10

Article 10, Section 4. Changes in tours of duty with less
than seven days' notice shall not be made unless there is an emergency that
would hamper accomplishment of the mission.

A. Positions of the Parties

1. Agency

The Agency contends that "[t]he provision is . . .
inconsistent with 5 CFR 610.121." Statement of Position at 3.
According to the Agency, that regulation permits agencies to change tours of
duty with less than 7 days notice when either: (1) "the agency would
be seriously handicapped in carrying out its functions," or (2) "costs
would be substantially increased." Id. Provision 10, the Agency
asserts, "allows for the first situation but does not allow for the second."
Id.

2. Union

In the Union's view, "[w]hile the Agency argues correctly that
5 CFR 610.121(a) allows management to make tour of duty changes with less
than seven [days] notice in two different circumstances . . . the
local activity has made a conscious decision to limit its own authority to
those situations in which 'there is an emergency that would hamper
accomplishment of the mission.'" Petition at 2. Under these circumstances,
the Union asserts, Provision 10 "does not violate any law, rule, or
regulation" but rather "clarifies the circumstances under which management will
exercise its authority." Id.

B. Analysis and Conclusion

Under section 7117(a)(1) of the Statute, a negotiated provision cannot
be inconsistent with any Government-wide regulation. The regulation at issue
here, 5 C.F.R. § 610.121, is Government-wide. SeeService and Hospital Employees International Union, Local 150 and
Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA
521, 530 (1990) (SEIU, Local 150).

(a) Except when the head of an agency determines that the agency
would be seriously handicapped in carrying out its functions or that costs
would be substantially increased, he or she shall provide that--

(1) Assignments to tours of duty are scheduled in advance of the
administrative workweek over periods of not less than
1 week[.]

The Authority has interpreted the regulation to mean that "employees
must have a minimum of seven days advance notice of a change in work schedules
unless the change is being made for the reasons set forth in . . .
[subsection] (a)." National Association of Government Employees,
Local R7-23 and Department of the Air Force, Scott Air Force Base,
Illinois, 23 FLRA 753, 756 (1986). Applying that interpretation, the
Authority has held that provisions that would restrict management's power to
act under subsection (a) are contrary to law.
Seeid.

Provision 10 permits management to change work schedules with less
than 7 days notice only when "there is an emergency that would hamper
accomplishment of the mission." The provision narrows management's authority to
act under subsection (a) by precluding work-schedule changes when "costs
would be substantially increased." The provision, therefore, is contrary to law
as alleged.SeeSEIU, Local 150, 35 FLRA
at 530-31. Accordingly, we dismiss the Union's petition as to
Provision 10.

IX. Provision 11

Article 11, Section 6. Employees who are required to work
overtime in excess of four hours shall be given a meal break of not less than
thirty (30) compensated minutes associated with such overtime
period.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 11 "is contrary to the [portion] of
the Fair Labor Standards Act . . . implemented in 5 CFR
551.411[(c)]." Statement of Position at 5. In the Agency's view,
"[s]ince[,]" under the regulation, "meal periods cannot be considered hours of
work, it follows that they cannot be compensated." Id. According to the
Agency, "at least some of the employees in the bargaining unit . . .
are covered by the Fair Labor Standards Act" and, therefore, "application of
this provision to them would violate the cited regulation[]." Id.

2. Union

The Union argues that Agency employees covered by the Fair Labor
Standards Act "are currently afforded a 'meal time' during their regular eight
hour shifts" and that "[t]his provision simply provides the same opportunity
for nourishment" to employees required to work long overtime shifts. Petition
at 2. The Union adds that "[t]he provisions of 5 CFR 551.411(c) were
not meant to be oppressive, but were meant to prevent abuse of overtime
compensation." Id.

B. Analysis and Conclusion

As the Agency points out, 5 C.F.R. pt. 551 implements the
Fair Labor Standards Act (the FLSA) in the federal sector. 5 C.F.R.
§ 551.101. The portion of part 551 addressing overtime pay
provides in pertinent part: "An agency shall compensate an employee
. . . for all hours of work in excess of 8 in a day or 40 in a
workweek at a rate equal to one and one-half times the employee's hourly
regular rate of pay . . . ."
5 C.F.R. § 551.501. It is well-settled that under the FLSA
time set aside for eating is not work for purposes of compensation unless it
involves activities "controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer . . . ."
Armour & Co. v. Wantock, 323 U.S. 126, 132 (1944)
(Wantock). See also 5 C.F.R. § 551.411(c)
(providing that "[b]onafide meal periods shall not be considered
hours of work").(5)

It is undisputed that the intent of Provision 11 is to provide
unit employees on overtime with an "opportunity for nourishment[.]" Petition
at 2. There is no evidence or argument that the employees covered by
Provision 11 would be expected to perform any work-related activity during
that time. Under these circumstances, the requirement of Provision 11 that
the meal period be "compensated" is inconsistent with the FLSA as applied in
the federal sector under 5 C.F.R. pt. 551. As such, Provision 11
is contrary to law as alleged. Cf.American Federation of Government
Employees, AFL-CIO, Local 3231 and Department of Health and Human
Services, Social Security Administration, 25 FLRA 600, 603 (1987)
(holding that proposal to treat time set aside for eating as work time was
contrary to 5 U.S.C. § 6101). Accordingly, we dismiss the
Union's petition as to Provision 11.

X. Provision 12

Article 20, Section 8. Prior to changing any competitive
areas affecting bargaining unit positions, the Employer agrees to negotiate the
new competitive areas with the Union.

A. Positions of the Parties

1. Agency

The Agency contends that "competitive areas are nonnegotiable because
they unavoidably impact the conditions of employment of supervisors and other
employees who are not in bargaining units." Statement of Position at 12.
In support of that assertion, the Agency cites American Federation of
Government Employees, Local 32 and U.S. Office of Personnel Management,
Washington, D.C., 51 FLRA 491 (1995) (AFGE, Local 32),
aff'd, 110 F.3d 810 (D.C. Cir. 1997).

2. Union

According to the Union: "This provision specifically states that the
only competitive areas that will require negotiation are the ones that affect
bargaining unit positions. This is rightly within the Union's area of
responsibility. To exclude negotiations on all topics that could possibly
impact the conditions of employment of supervisors would preclude the
possibility of any collective bargaining taking place at all." Petition
at 3.

B. Analysis and Conclusion

As the Agency points out, contract proposals concerning the working
conditions of supervisors are outside the scope of mandatory
bargaining. SeeAFGE, Local 32, 51 FLRA at 500-01.
However, "an agency is fully empowered to bargain over, and to choose to agree
to, a contract proposal that directly implicates the working conditions of its
supervisors" because such proposals address permissive subjects of
bargaining. American Federation of Government Employees, Local 3302 and
U.S. Department of Health and Human Services, Social Security
Administration, 52 FLRA 677, 681-82 (1996) (AFGE,
Local 3302). "Once an agency and a union agree to such a proposal, it
is enforceable provided that it is otherwise consistent with the Statute."
Id. at 682.

Provision 12, which would require bargaining over "any competitive
areas affecting bargaining unit positions" has been agreed to by the Union and
the Agency's local negotiators. Consequently, even if some of the competitive
areas covered by Provision 12 also include supervisors, the provision is
enforceable under AFGE, Local 3302 unless it is otherwise
inconsistent with the Statute. The Agency has not demonstrated such an
inconsistency. Although the Agency states that "competitive areas are
nonnegotiable because they unavoidably impact . . . employees who are
not in bargaining units," the Agency does not specify any nonunit employees who
would be affected by Provision 12. In addition, the Agency does not
specify any section of the Statute that would render Provision 12
unlawful.

Based on the foregoing, we conclude that the provision is not contrary
to law as alleged. SeeAFGE, Local 3302, 52 FLRA
at 683. Accordingly, we direct the Agency head to rescind its disapproval
of Provision 12.

XI. Provision 13

Article 45, Section 6h(2). Prospective interviewers will be
provided training by the CPD, which also will assure compliance with Privacy
Act provisions.

A. Positions of the Parties

1. Agency

According to the Agency, "Most or all prospective interviewers are
supervisors, and thus this provision mandates training for supervisors. Such
provisions are nonnegotiable because they seek to regulate the conditions of
employment of personnel outside the bargaining unit." Statement of Position
at 14. In support of its position, the Agency cites National Federation
of Federal Employees, Local 1482 and U.S. Department of Defense, Defense
Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky,
45 FLRA 640 (1992).

2. Union

In the Union's view, "The intent of the parties in this instance is to
provide for a reasonable level of competence. The parties have agreed to these
provisions in good faith and they do not violate any law, rule, or regulation."
Petition at 4.

B. Analysis and Conclusion

As noted in our analysis of Provision 12, once an agency and a
union agree to a proposal concerning the working conditions of supervisors, the
proposal is enforceable provided that it is otherwise consistent with the
Statute. SeeAFGE, Local 3302, 52 FLRA at 681-82.
Consequently, contrary to the Agency's assertion, Provision 13 is not
unlawful merely because it seeks to regulate the conditions of employment of
supervisors. As the Agency does not challenge Provision 13 on any other grounds
under the Statute, we conclude that it is not contrary to law as alleged.Seeid. at 682-83. Accordingly, we direct the Agency
head to rescind its disapproval of Provision 13.

XII. Order

The petition for review is dismissed as to Provisions 1 through
11. The Agency head shall rescind its disapproval of Provisions 12 and 13.(6)

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The Agency withdrew its allegation
of nonnegotiability with respect to two provisions, and the Union modified a
third provision to the Agency's satisfaction. Accordingly, those provisions
will not be considered in this decision. SeeNational Federation of
Federal Employees, Local 1214 and U.S. Department of the Army,
Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South
Carolina, 51 FLRA 1362 n.2 (1996); American Federation of
Government Employees, Local 1900 and U.S. Department of the Army,
Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 137-38
(1995).

2. Underlined text signifies that only
that portion of the provision is at issue. The Union has not requested the
Authority to sever and separately consider any of the text that is not in
dispute, and there is no other basis on which to do so. Accordingly, where the
Agency objects only to a portion of a provision and we find that the disputed
portion is not contrary to law, we will order the Agency head to rescind its
disapproval of the provision in its entirety. Where, on the other hand, the
disputed portion is found to be contrary to law, we will dismiss the petition
for review as to the entire provision. SeeNational Treasury
Employees Union and U.S. Department of Commerce, Patent and Trademark
Office, 53 FLRA No. 59, slip op. at 5 (Sept. 30, 1997)
(NTEU).

3. In light of our conclusion that the
provision is contrary to section 7106(a)(2)(C), the Agency's 7106(a)(2)(B)
argument need not be addressed. We also note, contrary to the Union's
assertion, that Provision 6 is not lawful merely because it is "a rollover
of a provision contained in the current contract." SeeAmerican
Federation of Government Employees, Local 1900 and U.S. Department of the
Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA
133, 135 (1995).

4. In light of this conclusion, the
Agency's 7112(b)(3) argument need not be addressed.

5. The term "bona fide meal periods" is
not defined in 5 C.F.R. pt. 551. However, the term is defined in
29 C.F.R. pt. 785, which implements the FLSA in the private sector. Under
that authority, "bona fide meal periods" are times when "[t]he employee [is]
completely relieved from duty for the purpose[] of eating regular meals."
29 C.F.R. § 785.19.

6. In concluding that Provisions 12 and
13 are not contrary to law, we make no judgment as to their merits.